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EXHIBIT 4.2
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT is entered into as of February 10, 1999, between
The Men's Wearhouse, Inc., a Texas corporation ("TMW"), Golden Moores Company, a
Nova Scotia unlimited liability company and wholly owned subsidiary of TMW
("Canco"), and Xxxxxx Retail Group Inc., a New Brunswick corporation ("MG"), and
MARPRO Holdings, Inc., MGB Limited Partnership, Capital D'Amerique CDPQ Inc.,
Cerberus International, Ltd., Ultra Cerberus Fund, Ltd., Styx International Ltd,
The Long Horizons Overseas Fund Ltd., The Long Horizons Fund, L.P. and Styx
Partners, L.P. (collectively, the "Shareholders" and each a "Shareholder").
RECITALS
WHEREAS, pursuant to a Combination Agreement dated as of November 18,
1998, by and between TMW, Canco, MG and the Shareholders (such agreement as it
may be amended or restated is hereinafter referred to as the "Combination
Agreement") the parties agreed that on the Effective Date (as defined in the
Combination Agreement), TMW, Canco and MG would execute and deliver a Support
Agreement containing the terms and conditions set forth in Exhibit N to the
Combination Agreement together with such other terms and conditions as may be
agreed to by the parties to the Combination Agreement acting reasonably.
WHEREAS, pursuant to a share restructuring (the "Share Restructuring")
effected by a share restructuring plan (the "Share Restructuring Plan") filed
pursuant to the Business Corporations Act (New Brunswick) (or any successor or
other corporate statute by which MG may in the future be governed) (the "Act")
each issued and outstanding Common Share, Class B Share, Class C Share and Class
D Share of MG (the "MG Shares") and each option to purchase MG Shares (the
"Options") was exchanged for issued and outstanding Exchangeable Shares of MG
(the "Exchangeable Shares"), and thereafter, MG's sole issued and outstanding
Preferred Share was exchanged by the holder thereof for one hundred issued and
outstanding Common Shares.
WHEREAS, the above-mentioned Share Restructuring Plan sets forth the
rights, privileges, restrictions and conditions (collectively the "Exchangeable
Share Provisions") attaching to the Exchangeable Shares.
WHEREAS, the parties hereto desire to make appropriate provision and to
establish a procedure whereby TMW and Canco will take certain actions and make
certain payments and deliveries necessary to ensure that TMW and Canco will be
able to make certain payments and to deliver or cause to be delivered shares of
TMW Common Stock in satisfaction of the obligations of TMW and Canco under the
Exchangeable Share Provisions.
WHEREAS, the parties hereto desire to make appropriate provision and to
establish a procedure whereby TMW and Canco will take certain actions and make
certain payments and deliveries necessary to ensure that MG will be able to make
certain payments and to deliver or cause to be delivered shares of TMW Common
Stock in satisfaction of the obligations of MG under the Exchangeable Share
Provisions.
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NOW, THEREFORE, in consideration of the respective covenants and
agreements provided in this agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. Each term denoted herein by initial capital letters
and not otherwise defined herein shall have the meaning attributed thereto in
the Exchangeable Share Provisions, unless the context requires otherwise.
1.2 Interpretation Not Affected by Headings, Etc. The division of this
agreement into articles, sections and paragraphs and the insertion of headings
are for convenience of reference only and shall not affect the construction or
interpretation of this agreement.
1.3 Number, Gender, Etc. Words importing the singular number only shall
include the plural and vice versa. Words importing the use of any gender shall
include all genders.
1.4 Date for Any Action. If any date on which any action is required to
be taken under this agreement is not a Business Day, such action shall be
required to be taken on the next succeeding Business Day.
ARTICLE II.
Covenants of TMW and Canco
2.1 Delivery by TMW. TMW hereby agrees that it will provide directly to
the Shareholders or to Canco, as required by the Exchangeable Share Provisions
or the Share Restructuring Plan, out of TMW's authorized and unissued capital
stock such number of shares of TMW Common Stock (or other shares or securities
into which TMW Common Stock may be reclassified or changed as contemplated by
section 3.7 hereof) (a) as is equal to the sum of the number of Exchangeable
Shares issued and outstanding from time to time and (b) as are now and may
hereafter be required to enable and permit TMW, Canco or MG, as applicable, to
meet their obligations hereunder, under the Combination Agreement, the Share
Restructuring Plan, the Exchangeable Share Provisions or any other related
document.
2.2 Delivery by Canco. Canco hereby agrees to deliver to the
Shareholders or MG, as required by the Exchangeable Share Provisions or the
Share Restructuring Plan, such shares of TMW Common Stock as they may become
entitled to under the provisions hereof or of the Combination Agreement, the
Share Restructuring Plan, the Exchangeable Share Provisions or any other related
document.
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ARTICLE III.
Covenants of TMW, Canco and MG
3.1 Covenants of TMW and Canco Regarding Exchangeable Shares. So long
as any Exchangeable Shares are outstanding, TMW will or will cause Canco and
Canco will or will cause MG, as the case may be, to:
(a) not declare or pay any dividend on TMW Common Stock
unless (A) MG will have sufficient assets, funds and
other property available to enable the due
declaration and the due and punctual payment in
accordance with applicable law of an equivalent
dividend on the Exchangeable Shares and (B)
subsection 3.1(b) shall be complied with in
connection with such dividend;
(b) cause MG to declare simultaneously with the
declaration of any dividend on TMW Common Stock an
equivalent dividend on the Exchangeable Shares and,
when such dividend is paid on TMW Common Stock, cause
MG to pay simultaneously therewith such equivalent
dividend on the Exchangeable Shares, in each case in
accordance with the Exchangeable Share Provisions;
(c) advise MG sufficiently in advance of the declaration
by TMW of any dividend on TMW Common Stock and take
all such other actions as are necessary, in
cooperation with MG, to ensure that the respective
declaration date, record date and payment date for a
dividend on the Exchangeable Shares shall be the same
as the record date, declaration date and payment date
for the corresponding dividend on TMW Common Stock;
(d) ensure that the record date for any dividend declared
on TMW Common Stock is not less than ten Business
Days after the declaration date for such dividend;
(e) take all such actions and do all such things as are
necessary or desirable to enable and permit MG, in
accordance with applicable law, to pay and otherwise
perform its obligations with respect to the
satisfaction of the Liquidation Amount in respect of
each issued and outstanding Exchangeable Share upon
the liquidation, dissolution or winding-up of MG or
any other distribution of the assets of MG for the
purpose of winding up its affairs, including without
limitation all such actions and all such things as
are necessary or desirable to enable and permit MG to
cause to be delivered shares of TMW Common Stock to
the holders of Exchangeable Shares in accordance with
the provisions of Article 5 of the Exchangeable Share
Provisions;
(f) take all such actions and do all such things as are
necessary or desirable to enable and permit MG, in
accordance with applicable law, to pay and otherwise
perform its obligations with respect to the
satisfaction of the
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Retraction Price and the Redemption Price, including
without limitation all such actions and all such
things as are necessary or desirable to enable and
permit MG to cause to be delivered shares of TMW
Common Stock to the holders of Exchangeable Shares,
upon the retraction or redemption of the Exchangeable
Shares in accordance with the provisions of Article 6
or Article 7 of the Exchangeable Share Provisions, as
the case may be;
(g) take all such actions and do all such things as are
necessary or desirable to enable and permit TMW and
Canco, in accordance with applicable law and any
contractual obligation of TMW, Canco and MG, to, and
TMW and Canco shall, pay and perform their
obligations to purchase Exchangeable Shares,
including without limitation all such actions and all
such things as are necessary or desirable to enable
and permit TMW and Canco to deliver shares of TMW
Common Stock to the holder of Exchangeable Shares, in
accordance with Article 6, Article 8 or Article 9 of
the Exchangeable Share Provisions and Sections 4.1,
4.2 and 4.3 of the Share Restructuring Plan; and
(h) cause the Transfer Agent to take all actions to be
taken by the Transfer Agent to carry out the terms of
the Exchangeable Share Provisions and the Share
Restructuring Plan.
3.2 Segregation of Funds. TMW will or will cause Canco and Canco will
or will cause MG, as required by the Exchangeable Share Provisions or the Share
Restructuring Plan, to deposit a sufficient amount of funds in a separate
account and segregate a sufficient amount of such assets and other property as
is necessary to enable TMW, Canco and MG to pay or otherwise satisfy their
obligations under the Exchangeable Share Provisions or the Share Restructuring
Plan to deliver and pay the Exchangeable Share Consideration and the
Exchangeable Share Price, in each case for the benefit of holders from time to
time of the Exchangeable Shares, and TMW, Canco and MG will use such funds,
assets and other property so segregated exclusively for the payment of dividends
and the payment or other satisfaction of the Exchangeable Share Consideration
and the Exchangeable Share Price, net of any corresponding withholding tax
obligations and for the remittance of such withholding tax obligations.
3.3 Reservation of Shares of TMW Common Stock. TMW hereby represents,
warrants and covenants that it has irrevocably reserved for issuance and will at
all times keep available, free from pre-emptive and other rights, out of TMW's
authorized and unissued capital stock such number of shares of TMW Common Stock
(or other shares or securities into which TMW Common Stock may be reclassified
or changed as contemplated by section 3.7 hereof) (a) as is equal to the sum of
the number of Exchangeable Shares issued and outstanding from time to time and
(b) as are now and may hereafter be required to enable and permit TMW, Canco and
MG to meet their obligations hereunder, under the Combination Agreement, the
Share Restructuring Plan, the Voting Trust Agreement, the Exchangeable Share
Provisions and any other related document pursuant to which TMW, MG or Canco may
now or hereafter be required to deliver shares of TMW Common Stock to the
holders of Exchangeable Shares.
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3.4 Notification of Certain Events. In order to assist TMW and Canco to
comply with their obligations hereunder, MG will give TMW and Canco notice of
each of the following events at the time set forth below:
(a) immediately, in the event of any determination by the
Board of Directors of MG to take any action which
would require a vote of the holders of Exchangeable
Shares for approval;
(b) immediately, upon the earlier of (A) receipt by MG of
notice of, and (B) MG otherwise becoming aware of,
any threatened or instituted claim, suit, petition or
other proceedings with respect to the involuntary
liquidation, dissolution or winding-up of MG or to
effect any other distribution of the assets of MG
among its shareholders for the purpose of winding-up
its affairs;
(c) immediately, upon receipt by MG of a Retraction
Request (as defined in the Exchangeable Share
Provisions);
(d) at least 130 days prior to any Automatic Redemption
Date determined by the Board of Directors of MG in
accordance with clause (b) of the definition of
Automatic Redemption Date in the Exchangeable Share
Provisions; and
(e) as soon as practicable upon the issuance by MG of any
Exchangeable Shares or rights to acquire Exchangeable
Shares.
3.5 Delivery of Shares of TMW Common Stock. In furtherance of its
obligations hereunder, upon notice of any event which requires MG to cause to be
delivered shares of TMW Common Stock to any holder of Exchangeable Shares, TMW
shall deliver to Canco and Canco shall forthwith deliver or TMW shall be
entitled to deliver directly the requisite shares of TMW Common Stock to or to
the order of the former holder of the surrendered Exchangeable Shares, as MG
shall direct. All such shares of TMW Common Stock shall be duly issued as fully
paid and non-assessable and shall be free and clear of any lien, claim,
encumbrance, security interest or adverse claim or interest.
3.6 Qualification of Shares of TMW Common Stock. TMW covenants that if
any shares of TMW Common Stock to be issued and delivered hereunder or under the
Combination Agreement, the Share Restructuring Plan or the Exchangeable Share
Provisions require registration or qualification with or approval of or the
filing of any document including any prospectus or similar document the taking
of any proceeding with or the obtaining of any order, ruling or consent from any
governmental or regulatory authority under any Canadian or United States
federal, provincial or state law or regulation or pursuant to the rules and
regulations of any regulatory authority, or the fulfillment of any other legal
requirement (collectively, the "Applicable Laws") before such shares may be
delivered to the initial holder thereof or in order that such shares may be
freely traded thereafter (other than any restrictions on transfer by reason of a
holder being a "control person" of TMW for purposes of Canadian federal or
provincial securities law or an "affiliate" of TMW for purposes of United States
federal or state securities law), TMW will in good faith expeditiously take all
such actions and do all such things as are necessary to cause such shares of TMW
Common Stock to be
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and remain duly registered, qualified or approved. TMW represents and warrants
that it has in good faith taken all actions and done all things as are necessary
under Applicable Laws as they exist on the date hereof to cause the shares of
TMW Common Stock to be issued and delivered hereunder or under the Combination
Agreement, the Share Restructuring Plan or the Exchangeable Share Provisions to
be freely tradeable thereafter (other than restrictions on transfer by reason of
a holder being a "control person" of TMW for the purposes of Canadian federal
and provincial securities law or an "affiliate" of TMW for purposes of United
States federal or state securities law). TMW will in good faith expeditiously
take all such actions and do all such things as are necessary to cause all
shares of TMW Common Stock to be delivered hereunder or under the Combination
Agreement, the Share Restructuring Plan or the Exchangeable Share Provisions to
be listed, quoted or posted for trading on all stock exchanges and quotation
systems on which such shares are listed, quoted or posted for trading at such
time.
3.7 Equivalence.
(a) TMW will not:
(i) issue or distribute shares of TMW Common
Stock (or securities exchangeable for or
convertible into or carrying rights to
acquire shares of TMW Common Stock) to the
holders of all or substantially all of the
then outstanding shares of TMW Common Stock
by way of stock dividend or other
distribution; or
(ii) issue or distribute rights, options or
warrants to the holders of all or
substantially all of the then outstanding
shares of TMW Common Stock entitling them to
subscribe for or to purchase shares of TMW
Common Stock (or securities exchangeable for
or convertible into or carrying rights to
acquire shares of TMW Common Stock); or
(iii) issue or distribute to the holders of all or
substantially all of the then outstanding
shares of TMW Common Stock (A) shares or
securities of TMW of any class other than
TMW Common Stock (other than shares
convertible into or exchangeable for or
carrying rights to acquire shares of TMW
Common Stock), (B) rights, options or
warrants other than those referred to in
subsection 3.7(a)(ii) above, (C) evidences
of indebtedness of TMW or (D) assets of TMW;
unless
(iv) one or all of TMW, Canco and MG is permitted
under applicable law and any contractual
obligations of TMW, Canco and MG to issue or
distribute the economic equivalent on a per
share basis of such rights, options,
warrants, securities, shares, evidences of
indebtedness or other assets to holders of
the Exchangeable Shares; and
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(v) one or all of TMW, Canco and MG shall issue
or distribute such rights, options,
warrants, securities, shares, evidences of
indebtedness or other assets simultaneously
to holders of the Exchangeable Shares.
(b) TMW will not:
(i) subdivide, redivide or change the then
outstanding shares of TMW Common Stock into
a greater number of shares of TMW Common
Stock; or
(ii) reduce, combine or consolidate or change the
then outstanding shares of TMW Common Stock
into a lesser number of shares of TMW Common
Stock; or
(iii) reclassify or otherwise change the shares of
TMW Common Stock or effect an amalgamation,
merger, reorganization or other transaction
affecting the shares of TMW Common Stock;
unless
(iv) MG is permitted under applicable law and any
contractual obligation of MG to
simultaneously make the same or an
economically equivalent change to, or in the
rights of holders of, the Exchangeable
Shares; and
(v) the same or an economically equivalent
change is made to, or in the rights of the
holders of, the Exchangeable Shares.
(c) TMW will ensure that the record date for any event
referred to in section 3.7(a) or 3.7(b) above, or (if
no record date is applicable for such event) the
effective date for any such event, is not less than
10 Business Days after the date on which such event
is declared or announced by TMW (with simultaneous
notice thereof to be given by TMW to MG).
3.8 Tender Offers, Etc. In the event that a tender offer, share
exchange offer, issuer bid, take-over bid, merger, business combination or
similar transaction with respect to TMW Common Stock (an "Offer") is proposed by
TMW or is proposed to TMW or its shareholders and is recommended by the Board of
Directors of TMW, or is otherwise effected or to be effected with the consent or
approval of the Board of Directors of TMW, TMW shall, in good faith, take all
such actions and do all such things as are necessary or desirable to enable and
permit holders of Exchangeable Shares to participate in such Offer to the same
extent and on an equivalent basis as the holders of shares of TMW Common Stock,
without discrimination, including, without limiting the generality of the
foregoing, TMW will use its good faith efforts expeditiously to (and shall, in
the case of a transaction proposed by TMW or where TMW is a participant in the
negotiation thereof) ensure that holders of Exchangeable Shares may participate
in all such Offers without being required to retract Exchangeable Shares as
against MG (or, if so required, to ensure that any such retraction shall
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be effective only upon, and shall be conditional upon, the closing of the Offer
and only to the extent necessary to tender or deposit to the Offer).
3.9 Ownership of Outstanding Shares. Without the prior approval of MG
and the prior approval of the holders of the Exchangeable Shares given in
accordance with Section 11.1 of the Exchangeable Share Provisions, TMW covenants
and agrees in favor of MG that, as long as any outstanding Exchangeable Shares
are owned by any person or entity other than TMW or any of its Subsidiaries, TMW
will be and remain the direct or indirect beneficial owner of all issued and
outstanding MG Common Shares and of at least 50.1% of all other securities of MG
carrying or entitled to voting rights in any circumstances generally for the
election of directors, in each case other than the Exchangeable Shares.
3.10 TMW to Vote Exchangeable Shares Proportionately. TMW covenants and
agrees that it will appoint and cause to be appointed proxy holders with respect
to all Exchangeable Shares held by TMW and its Subsidiaries for the sole purpose
of attending each meeting of holders of Exchangeable Shares in order to be
counted as part of the quorum for each such meeting. TMW further covenants and
agrees that it will, and will cause its Subsidiaries to, exercise any voting
rights which may be exercisable by holders of Exchangeable Shares from time to
time pursuant to the Exchangeable Share Provisions or pursuant to the provisions
of the Act with respect to any Exchangeable Shares held by it or by its
Subsidiaries in respect of any matter considered at any meeting of holders of
Exchangeable Shares in the same proportion as the Exchangeable Shares not held
by TMW and its Subsidiaries are voted by the holders thereof; provided, however,
that any such obligation of TMW and its Subsidiaries to vote Exchangeable Shares
proportionately shall only apply to matters of MG with respect to which the
Exchangeable Shares are entitled to vote.
3.11 Due Performance. On and after the Effective Date, TMW and Canco
shall duly and timely perform all of their obligations provided for in the Share
Restructuring Plan, including any obligations that may arise upon the exercise
of TMW's or Canco's rights under the Exchangeable Share Provisions.
3.12 Automatic Redemption Date. Each of TMW, Canco and MG agrees that
it will not take any action which would cause an Automatic Redemption Date to
occur under clause (c) of the definition thereof under the Exchangeable Share
Provisions.
ARTICLE IV.
GENERAL
4.1 Term. This agreement shall come into force and be effective as of
the date hereof and shall terminate and be of no further force and effect at
such time as no Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Exchangeable Shares) are held by
any party other than TMW and any of its Subsidiaries.
4.2 Changes in Capital of TMW and MG. Notwithstanding the provisions of
section 4.4 hereof, at all times after the occurrence of any event effected
pursuant to section 3.7 or 3.8 hereof,
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as a result of which either TMW Common Stock or the Exchangeable Shares or both
are in any way changed, this agreement shall forthwith be amended and modified
as necessary in order that it shall apply with full force and effect, mutatis
mutandis, to all new securities into which TMW Common Stock or the Exchangeable
Shares or both are so changed, and the parties hereto shall execute and deliver
an agreement in writing giving effect to and evidencing such necessary
amendments and modifications.
4.3 Severability. If any provision of this agreement is held to be
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remainder of this agreement shall not in any way be affected or impaired
thereby and this agreement shall be carried out as nearly as possible in
accordance with its original terms and conditions.
4.4 Amendments, Modifications, Etc. This agreement may not be amended,
modified or waived except by an agreement in writing executed by TMW, Canco and
MG and approved by the holders of the Exchangeable Shares in accordance with
Section 11.1 of the Exchangeable Share Provisions.
4.5 Ministerial Amendments. Notwithstanding the provisions of Section
4.4, TMW, Canco and MG may in writing, at any time and from time to time,
without the approval of the holders of the Exchangeable Shares, amend or modify
this agreement for the purposes of:
(a) adding to the covenants of either or both parties for
the protection of the holders of the Exchangeable
Shares; provided, that the Board of Directors shall
be of the opinion, after receipt of a written opinion
of outside counsel, that such covenants are not
prejudicial to the interests of the holders of the
Exchangeable Shares; or
(b) making such amendments or modifications not
inconsistent with this agreement as may be necessary
or desirable with respect to matters or questions
which, in the opinion of the board of directors of
each of TMW, Canco and MG, it may be expedient to
make, provided that each such board of directors
shall be of the opinion, after receipt of a written
opinion of outside counsel, that such amendments or
modifications will not be prejudicial to the
interests of the holders of the Exchangeable Shares;
or
(c) making such changes or corrections which, on receipt
of a written opinion of outside counsel to TMW, Canco
and MG, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent
provision or clerical omission or mistake or manifest
error; provided that the boards of directors of each
of TMW, Canco and MG shall be of the opinion, after
receipt of a written opinion of outside counsel, that
such changes or corrections will not be prejudicial
to the interests of the holders of the Exchangeable
Shares.
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The Corporation shall send a written notice to the holders of the Exchangeable
Shares notifying them of any amendment made pursuant to clause (a), (b) or (c)
of this Section 4.5 and a copy of any written opinion of counsel received in
connection with any such amendment.
4.6 Meeting to Consider Amendments. MG, at the request of TMW or Canco,
shall call a meeting or meetings of the holders of the Exchangeable Shares for
the purpose of considering any proposed amendment or modification requiring
approval of such shareholders. Any such meeting or meetings shall be called and
held in accordance with the by-laws of MG, the Exchangeable Share Provisions and
all applicable laws.
4.7 Amendments Only in Writing. No amendment to or modification or
waiver of any of the provisions of this agreement otherwise permitted hereunder
shall be effective unless made in writing and signed by both of the parties
hereto.
4.8 Inurement; Third Party Beneficiaries. This agreement shall be
binding upon and inure to the benefit of the parties hereto and the holders,
from time to time, of Exchangeable Shares and each of their respective heirs,
successors and assigns.
4.9 Notices to Parties. All notices and other communications between
the parties shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for either such party as shall be specified
in like notice):
if to MG:
Xxxxxx Retail Group Inc.
0000, Xxx Xx. Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxx Xxxxxx
Facsimile: 514.274.4177
with a copy to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: 212.626.4120
if to the Shareholders:
c/o Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile 212.626.4120
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if to TMW or Canco:
The Men's Wearhouse, Inc.
00000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Facsimile: 713.657.0872
with a copy to:
Fulbright & Xxxxxxxx L.L.P.
0000 XxXxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx, X.X.X. 00000-0000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: 713.651.5246
and
Xxxxx Casgrain
0 Xxxxx Xxxxx-Xxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxx X. Mass
Facsimile: 514.866.2241
Any notice or other communication given personally shall be deemed to
have been given and received upon delivery thereof and if given by telecopy
shall be deemed to have been given and received on the date of confirmed receipt
thereof, unless such day is not a Business Day, in which case it shall be deemed
to have been given and received upon the immediately following Business Day.
4.10 Counterparts. This agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
4.11 Jurisdiction. This agreement shall be construed and enforced in
accordance with the laws of the Province of Ontario.
4.12 Attornment. TMW and Canco agree that any action or proceeding
arising out of or relating to this agreement may be instituted in the courts of
Ontario, waive any objection which they may have now or hereafter to the venue
of any such action or proceeding, irrevocably submits to the non-exclusive
jurisdiction of such courts in any such action or proceeding, agrees to be bound
by any judgment of such courts and not to seek, and hereby waives, any review of
the merits of any such judgment by the courts of any other jurisdiction, and TMW
hereby appoints Canco at its registered office in the Province of Ontario as
TMW's attorney for service of process.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THE MEN'S WEARHOUSE, INC.
By: /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President - Finance
GOLDEN MOORES COMPANY
By: /s/ XXXX XXXXXX
---------------------------------
Name: Xxxx Xxxxxx
Title: Chief Accounting Officer
XXXXXX RETAIL GROUP INC.
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx Xxxxxx
Title: CEO
THE SHAREHOLDERS
MARPRO HOLDINGS, INC.
By: /s/ XXXXXX XXXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
MGB LIMITED PARTNERSHIP
By: /s/ XXXXXX XXXXXX
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Xxxxxxxxx
00
XXXXXXX X'XXXXXXXX CDPQ INC.
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
By: /s/ XXXXXXX XXXXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Corporate Secretary - Director
CERBERUS INTERNATIONAL, LTD.
By: Xxxxxxxxx Xxxx Overseas Management Ltd.
(Investment Manager)
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
ULTRA CERBERUS FUND, LTD.
By: Xxxxxxxxx Hill Overseas Management Ltd.
(Investment Manager)
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
STYX INTERNATIONAL LTD.
By: Xxxxxxxxx Xxxx Overseas Management Ltd.
(Investment Manager)
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
14
THE LONG HORIZONS OVERSEAS FUND LTD.
By: Old Stand Management L.L.C.
(Investment Manager)
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
THE LONG HORIZONS FUND, L.P.
By: Old Stand Associates L.L.C.
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
STYX PARTNERS, L.P.
By: Styx Associates, L.L.C.
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Member
